People v. Herrera CA4/3

Filed 1/25/23 P. v. Herrera CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061101

v. (Super. Ct. No. 18CF3361)

JESUS SEGURA HERRERA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Jesus Segura Herrera (Herrera) appeals from the judgment following his conviction on several charges, including second degree murder. Herrera argues his conviction must be reversed because (1) the prosecutor misstated the quantum of evidence necessary to demonstrate he acted with implied malice, and (2) the trial court erred by refusing to instruct the jury on gross vehicular manslaughter as a lesser charge. We disagree and affirm the judgment.

FACTS This case arises out of a fatal traffic collision. The victims, Jorge C. and Alfredo G., were passengers in a car driven by Claudia A., who had picked them up from a bar. She stopped for a traffic light at the corner of McFadden and Grand Avenues; after the light changed to green, she began to pull forward when her car was struck from behind by a car driven by Herrera. The impact caused both cars to spin. Jorge C., who was in the back seat, suffered an internal decapitation from the impact and died. When the paramedics arrived, they had to remove the roof of Claudia’s car in order to access Jorge C. Alfredo G., who was in the front passenger seat, suffered fractures to his ribs, spine, and neck. Following the impact, Herrera got out of his car and a bystander, fearing he was going to flee, yelled, “[d]on’t do it.” Herrera got back into his car and although another bystander told him to sit on the curb, he revved his engine, began to drive away, and hit a light pole. Several bystanders then dragged Herrera out of the car; one noticed the smell of alcohol on his breath. Herrera identified himself and then appeared to start convulsing. He was treated at the scene and was able to answer questions. He admitted to a Santa Ana police officer that he had been drinking, but said he did not remember how the accident occurred. The officer noted that Herrera’s speech was slurred, his eyes were red and watery, and he had an odor of alcohol on his breath. The officer found cold beer bottles,